The Florida Supreme Court recently heard oral arguments on whether to revert to an older, less rigid system of vetting expert witnesses, or to keep the newer, higher standard imposed by state legislators three years ago.
The former is known as the Frye standard, while the latter is the Daubert standard. Both standards are named after court cases, and Daubert is the standard used by federal courts.
Now, before we lose everyone here, we fully concede this sounds like the sort of dry, technical legal argument no one but lawyers care about it. But in fact, it’s something all Floridians should care about. That’s because at some point in your life, you are probably going to wind up in court. Perhaps you will file a personal injury lawsuit. It’s possible you might someday be accused of some type of negligence as a defendant in such a case. Maybe you will be accused of a crime or perhaps you are the victim. Both the criminal and civil justice system often rely heavily on the testimony of expert witnesses – from forensic experts to car accident reconstructionists to medical doctors to mechanics. The standard the court chooses to apply to vet such witnesses will affect whether their testimony is allowed, which has the potential to swing an entire case.
On the one hand, there are those who argue that the Daubert standard is preferable because it ensures that no so-called “junk science” will be used to decide court cases. The Daubert standard requires something of a mini-trial before the trial to determine whether a witness and his or her methodology and conclusions meet certain strict scientific guidelines. Those advocating for the Daubert standard are largely businesses and defendant lawyers (in both civil and criminal cases). It requires a three-part test for evaluating admissible expert testimony. That test asks:
- Is it based on sufficient facts or data?
- Is it the product of reliable principles and methods?
- Has the witness applied those methods and principles reliable in the facts of this particular case?
On the other hand, those advocating for the Frye standard are mostly plaintiff attorneys and prosecutors. They argue that the Daubert standard isn’t necessary, and causes more delays, greater legal costs and, in some cases, restricts access to the courts for some clients. Expert witnesses are expensive as it is. Making them clear Daubert standard hurdles, the argument goes, is unnecessary. The Frye standard, which was established in 1923, has just one question:
- Does the testimony represent principles that have gained a general acceptance among professionals in the field?
Those advocating for Frye have stated that Daubert is going to overburden the state court system with lengthy and expensive hearings.
The Daubert standard is used not just in federal court, but also in 35 state courts (now including Florida). If Florida reverted to the Frye standard, it would be in the minority.
Normally, our personal injury lawyers know the decision of the legislature would be final. However, under Florida’s state Constitution, the state high court has to adopt legislative rules regarding substance, but it can reject legislative rules about procedure. The question of weighing expert witness testimony is one of court procedure.
Call Associates and Bruce L. Scheiner, Attorneys for the Injured, at 1-800-646-1210.
Expert witness standard takes center stage at Florida Supreme Court, Sept. 1, 2016, By Jim Rosica, SaintPetersBlog.com
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